If Supreme Court Justice Neil Gorsuch helps strike down Roe vs. Wade he will be the second Supreme Court justice from Colorado to shame the state with a twisting of jurisprudence.
Beloved Coloradan Justice Byron White used his position of power on the highest bench to support privacy for some but not for others. Gorsuch would be wise not to build his legacy behind such a shaky legal bulwark.
The glaring hypocrisy of those who support privacy and liberty in their bedrooms and autonomy of their reproduction while opposing such rights for others will continue if Gorsuch strikes down the underpinnings of Roe vs. Wade by upholding the Texas or Mississippi abortion laws. And it is no exaggeration to say that in some parts of this land, religious zealots will attempt to once again ban birth control and some sexual acts between consenting adults.
The legal precedent with which the Supreme Court has protected Americans from unjust invasions of privacy and infringements of liberty for almost 60 years was first established in Griswold vs. Connecticut. Justices protected a married couple and their doctor from prosecution under an 1879 Connecticut law that banned the use of any drug or medical device to prevent conception. The ruling was a strong 7-2.
“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation,” Justice William O. Douglas wrote for the majority.
He concluded: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system.”
Many high-minded legal scholars call the “right to privacy” established by Douglas hogwash. They claim it is a manufactured amendment created to support a desired and popular outcome — the legalization of contraception — and then used to later protect abortion in Roe vs. Wade. These legal scholars point to Byron White and his dissent in Roe vs. Wade. White famously wrote: “I find nothing in the language or history of the Constitution to support the Court’s judgment.”
Yet, White, a baseball and football star from the University of Colorado, did support the idea that a ban on contraception was a violation of a fundamental right, concurring with the Douglas opinion in Griswold vs. Connecticut. He wrote: “In my view, this Connecticut law, as applied to married couples, deprives them of “liberty” without due process of law, as that concept is used in the Fourteenth Amendment.” So evident was this protection in the Constitution that he feared his concurrence would only be “belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed … ”
Did any brave clerk approach White with the strong language he had used in Griswold to try to persuade him from undermining his own jurisprudence in Roe? They might have urged him to reconsider his opposition to a right to privacy when just a few years prior he had written resolutely that the “basic civil liberties of man,” established in Skinner vs. Oklahoma, applied to the right “to be free of regulation of the intimacies of the marriage relationship.”
Did no one with a backbone ask White why Skinner and three other cases he cited (Pierce vs. Society of Sisters, Meyer vs. Nebraska and Prince vs. Massachusetts) wouldn’t also apply to a woman’s other reproductive choices early in pregnancy before a fetus was viable outside the womb? White wrote that those cases “affirm that there is a ‘realm of family life which the state cannot enter’ without substantial justification.” He refused to even argue in Roe vs. Wade the question of a compelling government interest because he was so sure the right to privacy, conveniently and suddenly, no longer existed.
Oh, the double standard.
White didn’t want the government in his bedroom but was fine with the government invading the privacy of a woman’s reproductive choices when she was making those decisions alone, and notoriously, White also supported laws dictating what happens in the bedrooms of same-sex couples.
White’s later opinions were clearly directed not by interpretation of the Constitution — I never found in my research a public statement or footnote indicating White thought he got it wrong in Griswold — but based on his personal beliefs and biases in a way that in retrospect is glaringly obvious.
White wrote the majority opinion for Bowers vs. Hardwick and his effort to distance that decision from his Griswold opinion was laughable: “We think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent.”
Really!? No connection? Maybe if he had written it in all caps it would have been more convincing or would have covered up the position of privilege from which he conferred reproductive and sexual liberties to heterosexual men but revoked those same rights from others.
White’s 1986 opinion in Bowers v. Hardwick stood for 17 years before the court struck it down: “Bowers’ rationale does not withstand careful analysis. In his dissenting opinion in Bowers, Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of ‘liberty’ protected by due process,” Justice Anthony Kennedy wrote in 2003 Lawrence vs. Texas. Yes, precedent can be overturned when it is wrong, but note that the court was upholding the right to privacy found in Roe by rejecting White. They had realized White’s argument was inconsistent and even … nonsensical.
White’s poor legal rationale was rejected again partially in 2013 and fully in 2015 with the court’s finding that same-sex couples could not be prohibited from being joined in marriage under the law. As those Supreme Court decisions trickled down, couples hugged and kissed on the steps of the Byron White U.S. Courthouse in Denver awaiting a 10th Circuit Court of Appeals ruling that would strike down a Utah ban on same-sex marriage using the “fundamental” rights found in the Fourteenth Amendment.
Gorsuch should tread carefully as he crafts his opinion in the two abortion cases before the Supreme Court, lest he be relegated in annals of history as a jurist more dedicated to the outcome of a court case than he is the consistent, fair and unbiased application of constitutional law. These are fraught political times. Gorsuch is already tainted by the words of the man who appointed him to the Supreme Court. Former President Donald Trump said unequivocally he would only appoint justices who would overturn Roe v. Wade: “If we put another two or perhaps three justices on, that will happen. And that will happen automatically, in my opinion, because I am putting pro-life justices on the court.”
Most Americans intuitively know the difference between losing a pregnancy at 6 weeks (when the abortion ban begins in Texas) with a heavy period and a sense of loss and the profound grief of losing a pregnancy at 37 weeks and picking out a name and a casket. Trump’s “pro-life” jurists are about to mess with the infinite wisdom of Justice Harry Blackmun who set the compelling government interest to regulate abortion at the point of fetal viability outside the womb. Will Gorsuch see it set all the way back to an “every sperm is sacred” mentality?
Who will believe that Trump’s justices are acting based on their legal interpretations and not their pro-life beliefs? Many clearly respected Byron White even after he exposed his inability to apply his legal interpretations equally, but times have changed.
No eponyms, no Fourth of July parades, no heroes worship in constitutional law courses will await those who were appointed to uphold the Constitution but instead use their powers to rip away the shelter of liberty from a generation of women who foolishly grew up believing this nation was founded on principles that would protect them from repulsive intrusions of the government into one of the most private and personal decisions that can ever be made.
Megan Schrader is the editor of The Denver Post opinion pages. She grew up in Grand Junction before attending the University of Missouri, working as an intern for the Kansas City Star, and as a reporter for The Gainesville Sun, The Oklahoman, and the Colorado Springs Gazette.
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